H-1B advocate Sen. Orrin Hatch sets stage for new visa battle

The U.S. Senate's leading proponent for increasing the H-1B visa cap is Sen. Orrin Hatch (R-Utah). His previous legislative efforts have infuriated critics of the visa program. Hatch's 2015 visa cap-increasing bill, I-Squared, was so awful, said the IEEE-USA, that it would "help destroy" the U.S. tech workforce.

Hatch is updating his I-Squared bill with reforms he hopes buy leeway with his critics. That doesn't seem likely.

Hatch heads the Republican's High-Tech Task Force, which on Thursday released its "Innovation Agenda." In presenting it, Hatch remained adamant that the U.S. suffers from a shortage of STEM workers and needs high-skilled foreign workers. But he says some employers abuse the H-1B visa.

"We need to ensure that this system is not manipulated to undercut domestic wages or displace American workers," said Hatch, in a statement. "Unfortunately, a handful of bad actors has created a great deal of unease about H-1B visas by misusing the system to offshore jobs to foreign workers. We've all seen the news reports."

The IEEE-USA, an association of about 200,000 engineering, computing and technology professionals, said it applauds Hatch's "recognition that the H-1B program is dominated by outsourcers," said Russell Harrison, the association's director of governmental affairs. But he called on Hatch to take action now by urging President Donald Trump to change the visa lottery.

The U.S. will hold its annual H-1B visa lottery on April 1. The IEEE-USA is urging Trump to change how the lottery works.

The H-1B rules recognize, broadly, two types of companies. There are H-1B dependent firms, with 15% or more visa workers, and non-dependent firms, with less than that percentage. H-1B dependent firms are mostly IT offshore outsourcing firms.

The IEEE-USA wants the lottery to give priority to non-dependent firms in the H-1B distribution, and move the dependent firms to the back of the line.

"That will go a long way to solving two of the problems Hatch identifies -- it will free up 50,000 H-1B visas for the employers the senator likes, and it will cripple H-1B outsourcers whose business model is to take jobs from Americans," said Harrison.

But the time for taking action is short, said Harrison. The Trump administration can change the lottery through an interim regulation, but it has to make the change by the end of February to give the rule the 30 days it needs before it can take effect by April 1.

The H-1B visa cap is set at 85,000, with 20,000 set aside for advanced degree graduates of U.S. schools. Firms that offshore work based in the U.S., and in India, have gotten as many as half of the 65,000 H-1B visas set aside under the so-called base cap.

Among Hatch's proposals are capping the number of visas any single employer can apply for, and requiring employers to attest that they first tried to hire an American worker. He also proposed something called a "shot clock," rule that will revoke a visa if it isn't used within a certain period of time.

Hatch also called for easing the pressure on the H-1B visas "by streamlining the process for green cards."

The last time that Hatch introduced the I-Squared bill, in 2015, it called for increasing the H-1B cap from 65,000 to 115,000. It allowed the cap to rise as high as 195,000, depending on demand. The Hatch bill also "uncapped" the U.S. advanced degree exemption.

Hatch's office issued a press release late Thursday with supporting statements from Oracle, Microsoft, the Consumer Technology Association, and other industry groups.

But others had different views about Hatch's latest effort.

"I can't think of any time that Senator Hatch has proposed or pushed for measures that would protect or improve the wages and working conditions of American or migrant workers," said Daniel Costa, director of immigration law and policy research at the Economic Policy Institute. "In fact, he's constantly pushed for the opposite -- by proposing a vast expansion of the flawed H-1B program and opposing commonsense reforms like those proposed in legislation from Senators Durbin and Grassley."

Grassley and Durbin worked to get H-1B reforms in the 2013 comprehensive immigration bill. They wanted, in particular, a requirement that employers make a "good faith" effort to hire a U.S. worker before bringing on an H-1B worker. But Hatch successfully fought that effort.
Costa also said that Hatch "wrongly scapegoats 'a handful of bad actors,' that have abused the H-1B program -- suggesting that the documented cases of replacing U.S. workers with lower-paid H-1B workers is the only problem with the program," he said.

The visa program allows "all companies that hire H-1B workers to not just replace U.S. workers, but also to avoid hiring U.S. workers in the first place, and allows companies to pay the H-1B workers they hire much less than they deserve according to U.S. wage standards," said Costa.

Hatch's argument that the U.S. faces a shortage of STEM workers is in dispute. In 2015, Hal Salzman, a professor of planning and public policy at Rutgers University, told the Senate Immigration Subcommittee that "the U.S. supply of top -performing graduates is large and far exceeds the hiring needs of the STEM industries, with only half of new STEM graduates finding jobs in a STEM occupation."

In response to Hatch's latest effort, Salzman said some of the proposals Hatch is suggesting could provide meaningful reform for the visa program. But he said rather than "try to tinker with a fundamentally flawed bill" -- the I-Squared bill -- he said that Hatch should work with previous bills, those authored by former Sen. Jeff Sessions, who is now attorney general, and the Grassley and Durbin effort, which he said are bills "that actually provide real reform."

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